Argumentative Discourse in Indigenous Consultations: A Comparative Study of the Crown’s Reasoning

The Crown must consult Indigenous communities in Canada if Indigenous rights/titles are adversely affected by a resource project. Indigenous consultations are always fraught with clashing values and power differentials. The institutionally dominant Crown controls the argumentative discourse in Indigenous consultations by imposing authority rules. Rules determine what can be argued and which arguments can be brought up by arguers communicating from unequal positions. Sometimes rules let the Crown avoid critical engagement with Indigenous arguers and respond to them in an argumentatively fallacious but still legally acceptable way, repeating the same counterarguments through regulatory and hearing stages. Because they are produced under authority rules, such responses become embedded in the dominant argumentative discourse and often pass unnoticed. To detect them, I introduce a new discourse analysis category: Argumentative Continuities (ACs). ACs are a set of the same arguments and counterarguments repeatedly produced/reproduced by the dominant arguer through an adversarial reasoning process to dismiss opposing arguments. ACs have their own life cycle – a chain of reasoning dynamics developed in a path-dependent fashion and increasing the cost of adopting a favored argument/evidence over time. I test the life cycle of ACs in Indigenous consultations held by the Crown over two controversial resource development projects – the Trans Mountain Pipeline expansion project (TM) and the BC Hydro’s Site C Clean Energy Project (Site C). ACs will help to: (1) reconstruct the Crown’s argumentative discourse (directional goals, practices of argument production, practices of argument evaluation, reasoning outcomes), and (2) demonstrate how a structure (authority rules) perpetuates hollow argumentative moves and locks a dominant arguer in a self-gratifying circle of confirming reasoning. Examining two contextually diverse cases of consultations, I explain why the Crown produced ACs in response to almost all Indigenous arguments against TM but not in response to many Indigenous arguments against Site C. First, I focus on the most vivid, repeatedly found, contextual factors – institutional (rules) and ideational (goals, arguments/counterarguments) features – that intersect and recur in reasoning interactions between the Crown and Indigenous arguers. Second, I identify these regularities and expose them as sequences of steps representing either directional (for the project) or accuracy (for and against the project) reasoning in consultations. The sequences reconstruct the Crown’s argumentative discourse and reveal how variations in consultation rules determine the Crown’s capacity to reason directionally or accurately and respond to opposing Indigenous arguments with or without ACs. Third, with the logic of increasing returns and employing a process-tracing method, I uncover how rules distribute resources (evidence sources) in consultations and attach different incentives (cost/benefits) to the exchanges, pushing arguers to communicate in a recourse-incentive dependent way. Considering rules as the key contextual constraints of consultations, I argue for their deterministic role in harnessing/resisting the biases in reasoning between epistemically diverse and institutionally unequal arguers.